United States District Court, E.D. Pennsylvania
DARNELL JONES, II J.
matter is before the court on two pro se motions filed by
Petitioner Alexander Alamo: (1) Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody; and, (2) Motion Pursuant to Rule 15(c) of
the Fedral [sic] Rules of Civil Procedure for Permission to
Amend Petition to Vacate, Set Aside, or Correct a Sentence
Under 28 U.S.C. 2255. (ECF Nos. 77, 82.) For the reasons set
forth below, Petitioner's Motion to Amend shall be
granted and his Amended Motion to Vacate, Set Aside, or
Correct a Sentence shall be denied without a hearing.
Further, no Certificate of Appealability shall issue.
December 9, 2003, Petitioner was named in a thirteen-count
indictment related to his sale of crack cocaine to an
undercover police officer over a three-month period in
Reading, Pennsylvania. Following a jury trial before the late
Honorable James Knoll Gardner, Petitioner was convicted of
eight of the thirteen counts: one count of Conspiracy to
Distribute Cocaine Base ("Crack"), in violation of
21 U.S.C. § 846 (Count One); two counts of Distribution
and Aiding and Abetting the Distribution of Cocaine Base
("Crack"), in violation of 21 U.S.C. §
841(a)(1), (b)(1)(c), and 18 U.S.C. § 2 (Counts Two and
Six); two counts of Distribution and Aiding And Abetting the
Distribution of Cocaine Base ("Crack") Within 1000
Feet of a School, in violation of 21 U.S.C. § 860(a) and
18 U.S.C. § 2 (Counts Three and Seven); one count of
Possession With Intent To Distribute In Excess of 50 Grams of
Cocaine Base ("Crack"), in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A) (Count Ten); one count of
Possession With Intent To Distribute In Excess of 50 Grams of
Cocaine Base ("Crack") Within 1000 Feet of a
School, in violation of 21 U.S.C. § 860(a) (Count
Eleven); and, one count of Possession of a Firearm by a
Convicted Felon, in violation of 18 U.S.C. § 922(g)(1)
(Count Thirteen). Petitioner was acquitted of the remaining
August 23, 2004, Petitioner was sentenced to a term of 276
months imprisonment, followed by ten years of supervised
release. A fine of $1, 000, as well as a special assessment
of $500 were also imposed. Petitioner filed a timely Notice
of Appeal challenging the sufficiency of the evidence
regarding his convictions on several counts. On December 20,
2005 the United States Court of Appeals for the Third Circuit
affirmed Petitioner's conviction. However, the Third Circuit
vacated Petitioner's sentence and remanded for
resentencing in accordance with the United States Supreme
Court's newly-issued decision in United States v.
Booker, 543 U.S. 220 (2005).
the Third Circuit's decision, Petitioner sought review
from the United States Supreme Court, which denied certiorari
on April 17, 2006. Alamo v. United States, 547 U.S.
1084 (2006). On August 3, 2006, consistent with the Third
Circuit's Opinion, Judge Gardner held a resentencing
hearing, after which he again sentenced Petitioner to 276
months imprisonment, ten years of supervised release, and
imposed a fine of $1, 000 together with a special assessment
August 4, 2006 Petitioner filed a Notice of Appeal from his
August 3, 2006 resentence. Petitioner's appointed
counsel, James M. Polyak, Esquire, filed a Motion to Withdraw
as Counsel and submitted a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). Upon review, the Third
Circuit concluded there were no non-frivolous issues for
appeal. United States v. Alamo, 289 Fed.Appx. 562,
563 (3d Cir. 2008). However, because Kimbrough v. United
States, 552 U.S. 85 (2007) was decided after counsel
filed his Anders brief, the Third Circuit denied
counsel's motion and dismissed the appeal without
prejudice to Petitioner's right to file a motion pursuant
to 18 U.S.C. 3582(c)(2). Id.
December 22, 2008, the court was advised that Petitioner had
made an unopposed request for a reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2) based upon amendments
to the United States Sentencing Guidelines in 2007 that
lowered his applicable Guidelines range. The court was
further advised that the parties had agreed to a proposed
revised sentence of 225 months imprisonment. On December 29,
2008, Judge Gardner granted Petitioner's request pursuant
to Section 3582(c)(2) and imposed a reduced sentence of 225
months imprisonment. Petitioner did not file a direct appeal.
On December 8, 2011, the court was advised that Petitioner
was eligible for a further reduction of sentence pursuant to
Section 3582(c)(2) based upon additional amendments to the
Sentencing Guidelines in 2011 that lowered his applicable
Guidelines range. The parties agreed to a reduced sentence of
145 months imprisonment. Judge Gardner granted the request on
December 8, 2011 and imposed a further reduced sentence of
145 months imprisonment. The within matter
convictions arose from his sale of crack cocaine to
undercover Police Officer Jacqueline Flanagan of the Reading
Police Department in Reading, Pennsylvania. On January 9,
March 21, and April 7, 2003, Officer Flanagan purchased crack
cocaine with pre-recorded money from an individual who
identified himself as "Flex." On March 26,
2003, Officer Flanagan also purchased crack cocaine from
"Flex" in exchange for an air conditioner in its
original box. On all four dates, police officers
conducted surveillance, took photographs, and observed the
suspect identified as "Flex" during and after the
transactions. During the March 26, 2003 transaction,
police observed the suspect arrive in a vehicle driven and
owned by Myra Ruiz. After the sale, police followed Ms.
Ruiz's car to an apartment on Buttonwood Street in
Reading, where they observed the suspect carry the air
conditioner into the apartment.
the March 21, 2003 transaction, Officer Flanagan was asked to
identify the person from whom she purchased crack
cocaine. Reading Police Investigator Pasquale
Leporace received information from a Pennsylvania State
Police trooper that the individual named "Flex" was
Joel Rivera. Investigator Leporace compared a
photograph of Mr. Rivera and the photographs taken of
"Flex," and determined that they looked
similar. Reading Police Investigator Michael
Gombar showed the photograph of Mr. Rivera to Officer
Flanagan, and she positively identified him as the person
from whom she purchased the crack cocaine.
the fourth purchase, Investigator Gombar obtained a search
warrant from Reading Magisterial District Judge Wally Scott
in Magisterial District 23-1-03. The search warrant
authorized searches of the Buttonwood Street apartment, Joel
Rivera, and Myra Ruiz. In addition, Investigator Gombar
obtained an arrest warrant for Mr. Rivera from Magisterial
District Judge Scott.
April 9, 2003, the warrants were executed by police. They
found Ms. Ruiz and the individual they believed to be Mr.
Rivera inside the apartment. Before conducting the search,
the suspect explained that his name was Alexander Alamo, and
not Joel Rivera. As such, Investigator Gombar called
Officer Flanagan to the apartment before proceeding with the
search. Officer Flanagan positively identified
Petitioner Alexander Alamo as the person from whom she
purchased crack cocaine on all four occasions. Accordingly,
the police proceeded to search the apartment. The search
disclosed, among other things, the air conditioner used in
exchange for crack cocaine during the March 26, 2003
transaction, as well as several firearms and crack
cocaine. Petitioner and Ms. Ruiz were arrested.
Investigator Gombar subsequently withdrew the arrest warrant
naming Joel Rivera.
April 9, 2003, Investigator Gombar executed a criminal
complaint and affidavit before Magisterial District Judge
Scott, who also conducted Petitioner's
arraignment. At trial, the government called several
witnesses to establish that Officer Flanagan had purchased
crack cocaine from Petitioner. Reading Police Investigators
Edwin Santiago and Pasquale Leporace, who conducted
surveillance, identified Petitioner as the person with whom
Officer Flanagan conducted at least two of the drug
transactions. Officer Flanagan and Investigator
Leporace testified that the photograph of Joel Rivera
resembled Defendant Alamo.Additionally, the government
presented Petitioner's girlfriend at the time of the
crimes--Myra Ruiz-as a witness at trial. Ms. Ruiz testified
regarding Petitioner's practices of cooking and selling
crack cocaine. She also identified the car she drove to
the March 26, 2003 crack cocaine sale to Officer Flanagan,
and testified that she was present when Petitioner
transferred the air conditioner from Officer Flanagan's
car, to Myra Ruiz's vehicle. Ms. Ruiz further
explained that some of Petitioner's customers referred to
him as "Flex". She denied ever knowing, or being in
a relationship with, Joel Rivera.
Standard of Review
2255 of Title 28 of the United States Code provides federal
prisoners with a vehicle for challenging an unlawfully
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such a sentence, or that
the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C.§ 2255(a).
motion to vacate sentence under Section 2255 "is
addressed to the sound discretion of the district
court." United States v. Williams, 615 F.2d
585, 591 (3d Cir. 1980). A petitioner may prevail on a
Section 2255 habeas claim only by demonstrating that an error
of law was constitutional, jurisdictional, "a
fundamental defect which inherently results in a complete
miscarriage of justice," or an "omission
inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S.
424, 428 (1962).
concedes that none of the five claims he raises in his
Petition, nor the sixth claim he seeks to add via amendment,
have been raised on direct appeal. It is well established
that a Petition brought pursuant to Section 2255 cannot be
used as a substitute for direct appeal. United States v.
Smith, 235 F.Supp.2d 418, 426 (E.D. Pa. 2002). In
general, failure to raise an issue on direct appeal
constitutes waiver, and the procedural default prevents the
claim from being raised in a Section 2255 motion unless the
petitioner can show both cause for the failure to raise the
issue and actual prejudice, or the petitioner can show actual
innocence. Bousley v. United States, 523 U.S. 614,
must be objective - something external to the petitioner,
something that cannot be fairly attributed to him."
Smith, 235 F.Supp.2d at 426 (citing Coleman v.
Thompson, 501 U.S. 722, 751 (1991) and Murray v.
Carrier, 477 U.S. 478, 488 (1986)). To show prejudice, a
petitioner must establish that the alleged error "worked
to his actual and substantial disadvantage,"
and that it infected the proceedings with "error of
constitutional dimensions." United States v.
Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
the United States Supreme Court has held that the procedural
default rule does not apply to ineffectiveness claims brought
pursuant to Section 2255, but instead "an
ineffective-assistance-of-counsel claim may be brought in a
collateral proceeding under § 2255, whether or not the
[Defendant] could have raised the claim on direct
appeal." Massaro v. United States, 538 U.S.
500, 504 (2003); see also United States v. Davies,
394 F.3d 182, 188 n.5 (3d Cir. 2005). Accordingly, although
Petitioner raises his ineffective assistance of counsel
claims for the first time in his Petition, this Court shall
address same below.
Ineffective Assistance of Counsel
preliminary matter, Petitioner's Motion to Amend his
Petition to add an ineffective assistance of counsel claim
based upon counsel's alleged failure to challenge Officer
Flanagan's out-of-court identification of Petitioner,
shall be granted. As the government concedes, this claim
properly relates back to Petitioner's timely Habeas
Petition for purposes of the statute of limitations, because
it "arose out of the conduct, transaction, or occurrence
set out...in the original pleading." Fed.R.Civ.P. 15(c);
see also Mayle v. Felix, 545 U.S. 644, 662-664
(2005) ("So long as the original and amended petitions
state claims that are tied to a common core of operative
facts, relation back will be in order.").
claim of ineffective assistance of counsel, as well as all
five claims presented in his petition, each center on his
primary allegation that an individual named Joel Rivera-not
Petitioner- -was the actual suspect involved in the crimes
with which Petitioner has been convicted. Therefore, relation
back under Rule 15(c) is appropriate because "the
original and amended petitions state claims that are tied to
a common core of operative facts." Mayle, 545
U.S. at 664; see also Hodge v United
States, 554 F.3d 372, 378 (3d Cir. 2009) ("[N]ew
claims can relate back if they arise from the same conduct,
transaction, or occurrence described in a timely filed 2255
alleges four separate claims of ineffective assistance of
counsel (three in his Habeas Petition and one in his Motion
to Amend). Specifically, Petitioner contends counsel was
ineffective by failing to: (1) challenge and seek to exclude
Officer Flanagan's impermissibly suggestive out-of-court
identification and her tainted in-court identification; (2)
challenge by pre-trial motion, or on direct appeal, the false
statements in the search and arrest warrants and affidavits;
(3) object to, or raise on direct appeal, fraud on the court
by Officer Flanagan; and (4) object to, or raise on direct
appeal, prosecutorial misconduct for knowingly using false
police reports and in eliciting false testimony.
of ineffective assistance of counsel requires a showing of
two elements: (1) counsel's performance must have been
deficient to the extent that errors by counsel were so
serious, that he was not functioning as "the
counsel" guaranteed by the Sixth Amendment; and, (2) the
deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). To establish a
deficiency in counsel's performance, a convicted
defendant must demonstrate that the representation fell below
an "objective standard of reasonableness" based on
the particular facts of the case and viewed at the time of
counsel's conduct. Strickland, 466 U.S. at 688,
; see also Senk v. Zimmerman, 886 F.2d 611, 615 (3d
Cir. 1989) ("[W]e will not often decide that attorneys
have acted unreasonably under prevailing professional
standards when they do not make an objection which could not
be sustained on the basis of the existing law, as there is no
general duty on the part of defense counsel to anticipate
changes in the law.") (citations omitted). There is a
"strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance;
that is, the Defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy." Strickland,
466 U.S. at 689 (internal quotations omitted).
establish the second Strickland prong,
"Defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694.
Counsel's errors must have been so serious that they
deprived the defendant of a "fair trial" with a
"reliable" result. Strickland, 466 U.S. at
Officer Flanagan's Out-of-Court and In-CourtIdentifica ...